Chapter

The Disintegration of Duty

Ernest J. Weinrib

in Corrective Justice

Published in print September 2012 | ISBN: 9780199660643
Published online January 2013 | e-ISBN: 9780191748288 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199660643.003.0003

Series: Oxford Legal Philosophy

The Disintegration of Duty

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The classic negligence cases of the twentieth century established a coherent framework for negligence liability, in which, in accordance with corrective justice, the injustice done by the defendant was identical to the injustice suffered by the plaintiff. Crucial to this framework was the general conception of duty articulated by Lord Atkin in Donoghue v Stevenson. This chapter sets out the place of this conception of the duty of care within the ensemble of negligence concepts, as well as the importance of rights (signalled by the Palsgraf case) for duty so conceived. It then describes the disintegration of that conception of duty, and with it the erosion of a coherent law of negligence, paying special attention to the deficiencies of the two-stage test prominent in Canadian tort law. It concludes by setting out two different notions of policy, of which only one is consistent with corrective justice.

Keywords: duty of care; Donoghue; Palsgraf; rights; two-stage test; policy

Chapter.  18792 words. 

Subjects: Jurisprudence and Philosophy of Law

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